Wilburn v. Bratcher et al

Filing 88

ORDER signed by Magistrate Judge Gregory G. Hollows on 11/22/2016 DENYING 87 Motion to Proceed IFP. The Clerk of the Court shall transmit this Order to the Ninth Circuit Court of Appeals. (cc: USCA) (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TERRENCE LAMAR WILBURN,

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Plaintiff,

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No. 2:15-cv-00699 MCE GGH

v.

ORDER

GARREN BRACHER, et al.,

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Respondent.

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PROCEDURAL BACKGROUND

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Plaintiff filed his complaint in Sacramento Superior Court on February 20, 2015, ECF No.

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1-1, and Defendant City of Sacramento and others removed it to this court on March 27, 2015.

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ECF No. 1. The complaint alleges claims under 42 U.S.C. §§ 1981, 1983, and 1986, and under

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various state law provisions. ECF 1-1 at 7. On October 13, 2016, the District Court dismissed

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plaintiff’s federal claims with prejudice and his state claims without prejudice to refile them in

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State court and closed the file. ECF No. 82.1 Plaintiff filed an Application to Proceed In Forma

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Pauperis on Appeal pursuant to 28 U.S.C. § 1915(a) on November 16, 2016. ECF No. 87.

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Plaintiff was given the opportunity to file a second amended complaint on one Eighth
Amendment theory, but he has evidently chosen not to do so.
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DISCUSSION
The district court did not address in forma pauperis in this matter insofar as the filing fees

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were discharged by the defendants upon removal. The court has reviewed the plaintiff’s

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Application for IFP on appeal under 28 U.S.C. § 1915(a).

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Plaintiff’s Affidavit in Support of his Application reflects that he has no dependents and

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that the only income he receives is $194 per month as CalFresh benefits and that he has no other

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resources with which to meet the fee and costs requirements of his appeal. Thus, at this point

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plaintiff has made an adequate showing of indigency. See Olivares v. Marshall, 59 F.3d 109, 112

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(9th Cir. 1995); Alexander v. Carson Adult High Sch., 9 F.3d 1448, 1449 (9th Cir. 1993).

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However, 28 U.S.C. section 1915(a)(3) requires that before one may proceed on appeal

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IFP, the court must find that the appeal is taken in good faith. Based on the final Findings and

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Recommendations in this case, the court cannot so find.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to proceed in forma pauperis is DENIED;

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2. The Clerk of the Court shall transmit this Order to the Ninth Circuit Court of Appeals.

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Dated: November 22, 2016
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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